Egeneonu v Egeneonu

I have before me an unprecedented application in a case which in its mundane circumstances is of an all too familiar type.

Following their removal to Nigeria, children were made wards of court. Their father is in contempt of court, having breached various court orders: in particular, by failing to return the children to this country and by himself fleeing abroad to Nigeria. The mother seeks the father’s extradition from Nigeria. For that purpose she seeks a declaration that the contempts of which the father has been found guilty are criminal and not merely civil. She puts her case on two bases: the contempts, she says, (i) relate to wards of court and (ii) involve interference with the administration of justice.

So far as I am aware, in all the long history of wardship no such application has ever been made before. But that is not of itself any answer if the argument is sound. In my judgment, it is not.

I am concerned with three children, born in respectively 2002, 2005 and 2007. Prior to July 2013, they had been living in this country with their parents. In July 2013 the children went to Nigeria, where all three remain, in circumstances which were the subject of controversy between the parents. The applicant mother began proceedings on 22 November 2013, when Ms Alison Russell QC (sitting as a Deputy High Court Judge) made a without notice Tipstaff order directed to the respondent father. Further orders were made by Moylan J on 17 December 2013 and 20 December 2013. On 30 January 2014, Russell J, as by then she had become, ordered that the three children be wards of court, as they remain. On 6 February 2014, the father, who until then had been in this country, left for Nigeria, where he remains. Further orders were made by Russell J on 26 February 2014, 5 March 2014 and 14 March 2014.

For present purposes, the following are the relevant provisions of these orders:

On 13 May 2014, the mother applied for the father’s committal. The application was headed “In the matter of the inherent jurisdiction of the High Court” (why? – see re HJ (A Child) [2013] EWHC 1867 (Fam), para 10) and “In the matter of [names and dates of birth of the children].” The application set out the various orders and undertakings referred to in paragraph 5 above. In paragraph 9 of the application it was alleged that the father “has breached the provisions listed above in that”, and the specific allegations were then set out in nine separate sub-paragraphs, each commencing with the words “in breach of” followed by a reference to the specific paragraph of the relevant order.

Except for the allegations of breach of the undertakings of paragraphs (c) and (d) of the order of 17 December 2013, no point arises on the precise wording of the allegations. In relation to the alleged breach of the undertakings, paragraph 9(b) of the application made the following allegations:

“In breach of his undertakings … [the father] contacted the [mother] on 12 March 2014 by telephone on 4 occasions between 7:00am and 8:00am and on 14 March 2014 by telephone on one occasion and in the course of those calls taken both separately and together he acted in an intimidating, harassing and pestering manner and made threats of violence. Specifically:

(i)

As a result of one of the 4 calls made by [the father] to the [mother] on 12 March 2014 [he] left [her] one voicemail, in which he instructed her to ‘go quietly’ and told her that she should ‘withdraw the case’. He said that he would continue to call [her] with a private number, and said that the children were in Nigeria and that he would never return them, saying the word ‘never’ repeatedly. This communication was upsetting and constituted intimidating, harassing and pestering conduct.

(ii)

As a result of another of the 4 calls made by [the father] to the [mother] on 12 March 2014, [she] answered the telephone and [he] continued to insult and curse [her]. He said that if the [she] did not withdraw the case he would do ‘bad things’ to her family. He said that he would keep calling her on a private number. This communication was upsetting and constituted intimidating, harassing, pestering and threatening conduct.

(iii)

As a result of the call made by [the father] to the mother] on 14 March 2014, [she] answered the telephone and [he] continued to ‘curse’ [her] and told her that she must withdraw her case and that whatever she did the children would never come back to the UK. This communication was upsetting and constituted intimidating, harassing and pestering conduct.”

In relation to the application, there are three things to be noted. First, although the heading refers to the inherent jurisdiction, it is nowhere said that the children are wards of court. Secondly, each alleged contempt is charged as being a “breach” of the relevant order, and nothing more. Thirdly, it is nowhere said that the result of any of the breaches has been an interference with the administration of justice, let alone that this was intended or was, or should have been, contemplated by the father.

The committal application was heard by Newton J who, on 6 March 2015, found the father guilty of each of the alleged contempts: Egeneonu v Egeneonu [2015] EWHC 954 (Fam). On this occasion the father had appeared in person for part of the hearing by telephone link. The father was sentenced by Newton J, in his absence, on 8 May 2015: Egeneonu v Egeneonu [2015] EWHC 4187 (Fam). On this occasion, it is important to note, the father was neither present nor represented.

Although in his first judgment Newton J referred in passing (para 33) to the fact that these were wardship proceedings, it is clear that, consistently with the way in which the case had been pleaded in the application, Newton J approached the matter, and found the contempts proved, simply on the basis (see, for example, paras 45-48), that the father was in breach of the court’s orders. And that was the basis on which he sentenced the father, Egeneonu v Egeneonu [2015] EWHC 4187 (Fam), para 9:

“I am entirely satisfied, so that I am sure, that the father by his conduct has demonstrated that he has a total disregard of the court orders. He has absolutely no intention of complying with any of the court orders. They are contempts of the worst kind. He has not returned the children to the jurisdiction when he could have done at any time, even recently I am told that there had been some communication from him asking what the consequences might be if he returned them, but has not done so. He has deliberately subverted the court orders.”

The committal order, dated 8 May 2015 follows the language of the application, reciting that “THE COURT HELD that [the father] has been guilty of contempt of court as follows: … the [father] has breached the provisions listed above in that”, and the specific findings were then set out in nine separate sub-paragraphs, each commencing with the words “in breach of” followed by a reference to the specific paragraph of the relevant order.

On 7 September 2015 the mother issued an application seeking “declaratory relief pursuant to the inherent jurisdiction, in particular, that [the father’s] contempt constitutes an extradition offence pursuant to the Extradition Act 2003 and it is in the public interest that he be extradited from Nigeria to serve his sentence in England.” The application came before Newton J on 10 March 2016. Having heard submissions from Mr Alistair G Perkins on behalf of the mother, Mr Mark Summers QC on behalf of the Crown Prosecution Service, Ms Naina Patel on behalf of the Home Office, and Ms Gemma White QC as advocate to the court, the father being neither present nor represented, Newton J ordered that the application was to be listed before me and “shall proceed on the basis set out in Annex A” as follows:

“The declaratory relief now sought: The following contempts of court found proved beyond reasonable doubt by the Honourable Mr Justice Newton on 6 March 2015 constituted criminal offences.”

The contempts listed are those in relation to the orders set out in paragraphs 5(i)-(vi) above. It is to be noted that the declaration sought does not extend to the contempts found in relation to the orders set out in paragraphs 5(vii)-(x).

The matter came before me for directions on 5 May 2016. By then the father, although still absent, was represented, by Mr Christopher Hames QC. In these circumstances, having heard Mr Summers, Ms Patel and Ms White I discharged the Crown Prosecution Service and the Home Office as interested parties and directed that the advocate to the court not actively participate in the proceedings unless invited to do so by the court (which, in the event, she was not). I invited the Attorney General to consider whether it was appropriate for him to intervene in his capacity as guardian of the public interest (in the event he did not). I fixed the final hearing of the application for 18 October 2016.

It will be appreciated that the ambit of the hearing as defined by Newton J’s order of 10 March 2016 is much narrower than as described in the mother’s application of 7 September 2015. This reflected a belated recognition by the mother that the relief she had originally sought extended far beyond what the court could properly grant.

Unsurprisingly, both the Crown Prosecution Service and the Home Office had objected that the relief as originally sought offended two cardinal principles: first, that extradition is ultimately a matter for the Crown, and therefore Ministers, and that what the court was being invited to do would involve it in the illegitimate function of supervising or monitoring the process of extradition; and, secondly, that insofar as this was appropriately something for consideration by the High Court it was properly a matter for the Administrative Court, not the Family Division. It was not, they submitted, for this court to declare whether or not the contempts in question were extradition offences; the court’s proper function was, at most, to declare whether or not the contempts were criminal.

There was, if I may say so, convincing force in their submissions and I am entirely unsurprised that on 10 March 2016 Newton J made the order he did. In the circumstances I need say no more on this aspect of the case. I am concerned only with the question, as defined in Newton J’s order, whether the contempts in relation to the orders listed in paragraphs 5(i)-(vi) above, found proved by Newton J on 6 March 2015 to the criminal standard, “constituted criminal offences.”

Before getting to the heart of the case, there are two preliminary matters I need to consider: Do I have jurisdiction to grant the relief sought? And, if I do, should I exercise that jurisdiction?

The parties, the CPS, the Secretary of State and the advocate to the court are, correctly, agreed that I have jurisdiction. Mr Hames submits that I do not, but his argument, which I do not find convincing, assumes that the inherent jurisdiction in play in relation to this aspect of the matter is the inherent jurisdiction in respect of children whereas it is, in my judgment, the inherent declaratory jurisdiction which is here in issue.

The more problematic question is whether I should exercise the jurisdiction, not least bearing in mind, first, that neither the CPS nor the Secretary of State is a party and that, accordingly, neither will be bound by any declaration I may make and, secondly. that the court is traditionally, and for good reason, slow to grant declaratory relief in relation to the criminal law. I am, nonetheless, persuaded, having regard to the principles set out by Aikens LJ in Rolls Royce plc v Unite the Union [2009] EWCA Civ 387, [2010] 1 WLR 318, para 120, that I should exercise the jurisdiction. Given the stance being adopted by Mr Hames on behalf of the father, I have the benefit of rigorously adversarial argument. And, at the end of the day, and despite the scepticism expressed both by the advocate to the court and by Mr Hames, I can see advantage, as indeed do both the Crown Prosecution Service and the Home Office, in the court which has determined the question of contempt also deciding whether the contempt is civil or criminal. As Ms Patel put it in her skeleton argument for the hearing before Newton J on 10 March 2016, the mother can properly seek to invoke the adjudicatory powers of the convicting court to clarify whether any of the contempts in question were criminal rather than civil in nature. Mr Summers went even further, submitting that “only the convicting court is able to determine the issue.” Ms White expressed scepticism, which I share, as to whether this latter point can be right, and I make clear that this is not the basis of my decision to proceed.

I turn therefore to consider whether the contempts which Newton J found proved were criminal or civil.

The interesting and difficult issues to which this question invites inquiry lie at the intersection between two bodies of law – the law of wardship and the law of contempt – each of which is highly technical and neither of which can be fully understood except by reference to aspects of previous practice that are now largely of only historical interest and, as in the way of such things, often difficult of access to practitioners and judges familiar only with contemporary practice.

In order to clear the ground, I therefore need to survey the landscape, albeit in cursory fashion. What follows, sufficient for present purposes, is descriptive, and at quite a high level of generality, not definitive.

Contempts of court, although all, without exception, required to be proved to the criminal standard, are traditionally classified as being either civil or criminal contempts. The distinction in modern times is usually of little if any practical significance, many of the distinctions having been eradicated by statute, including by the Administration of Justice Act 1960 and the Contempt of Court Act 1983. Civil contempts are those which involve breach of a court order (it making no difference for this purpose whether the relevant order was made by a civil or a criminal court); other contempts are criminal (it making no difference for this purpose whether the relevant contempt was committed in relation to proceedings in a criminal or in a civil court).

This is, or should be, elementary but it is convenient nonetheless to refer to what Lord Toulson, giving the judgment of the Supreme Court, said in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23, [2014] AC 1246, paras 37-39, 42, a case where the question, arising as here in an extradition context, was whether disobedience to a restraint order made under section 41 of the Proceeds of Crime Act 2002 was a criminal or a civil contempt:

“37

There is a distinction long recognised in English law between “civil contempt”, ie conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed, and “criminal contempt” …

38

Breach of an order made (or undertaking obtained) in the course of legal proceedings may result in punishment of the person against whom the order was made (or from whom the undertaking was obtained) as a form of contempt … However, a contempt of that kind does not constitute a criminal offence. Although the penalty contains a punitive element, its primary purpose is to make the order of the court effective. A person who commits this type of contempt does not acquire a criminal record.

39

A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice. Examples include physically interfering with the course of a trial, threatening witnesses or publishing material likely to prejudice a fair trial.

…

42

Mr Jones submitted that the position is different with a restraint order under section 41, because it is not an order obtained in order to protect an applicant’s civil rights but is an order obtained by the state in the course of a criminal investigation. The Common Serjeant and the Court of Appeal rejected this argument and I agree with them. It is necessary to look at the nature and purpose of the order. It is fallacious to argue that because the order was made by a criminal court, rather than a civil court, disobedience to the order amounts to a crime, whereas it would not have been a crime to disobey a similar order imposed by a civil court. The question whether a contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on nature of the conduct. To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial. Conversely, disobedience to a procedural order of a court is not in itself a crime, just because the order was made in the course of criminal proceedings. To hold that a breach of a procedural order made in a criminal court is itself a crime would be to introduce an unjustified and anomalous extension of the criminal law. “Civil contempt” is not confined to contempt of a civil court. It simply denotes a contempt which is not itself a crime.”

There are, as can be seen, various types of criminal contempt, most of which are not relevant for present purposes. I am not, for example, concerned either with contempt in the face of the court or with what can be described as ‘publication’ contempts. What I am concerned with are two types of criminal contempt: contempts involving interference with wards of court; and other contempts involving interference with the administration of justice. It is convenient to start with wardship.

There is an important distinction between the inherent parens patriae jurisdiction in relation to children and wardship. The mere exercise of the inherent jurisdiction does not make a child a ward of court. A child becomes a ward if either a summons is issued seeking that the child be warded (the mere issue of the summons having that effect) or, as happened in the present case, if the court makes an order warding the child. The distinction between the inherent jurisdiction and wardship is important. Wardship confers on the ward “certain forms of protection which arise automatically by reason of the wardship:” Lowe & White, Wards of Court, ed 2 1986, para 5-1, a book of high authority although we rejoice in the continued vigour of both its authors. As I said in Kelly v British Broadcasting Corpn [2001] Fam 59, 71, “wardship confers on the ward a status to which the law attaches certain incidents.” I continued, 75-76,

“As is well-known, no “important” or “major” step in the life of a ward of court can be taken without the prior consent of the court. This is not some empty exhortation or mere platitude for, subject to proof of knowledge that the child in question is a ward of court, it is a contempt of court to undertake or facilitate any such step without the consent of the court.

… Understandably no one has ever sought to define what constitutes an “important” or “major” step for this purpose. I certainly do not propose to do so. [Lists and discussions in various textbooks] show that included in the category of “important” or “major” steps for this purpose are: marrying the ward; removing the ward from the jurisdiction; making a material change in the ward’s education, residence or whereabouts (including placing the ward in secure accommodation, moving the ward between foster parents or placing the ward for adoption); instituting adoption proceedings or freeing for adoption proceedings with respect to the ward; changing the ward’s name; making an application on behalf of the ward to the Criminal Injuries Compensation Board; administering a police caution; or subjecting the ward to the more significant forms of medical treatment (for example, an abortion or a sterilisation).

Also included in the list … are: a psychiatric examination for forensic purposes; interviews by an independent social worker; police interviews; and interviews on behalf of a defendant in criminal proceedings.”

I returned to the point in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 84, in the course of a discussion and comparison of the inherent jurisdiction in relation to children and the inherent jurisdiction in relation to adults:

“… the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult.”

In relation to wardship and contempt, there is an invaluable, and as it seems to me accurate, analysis in Lowe & White, paras 8-1–8-11 under the heading “Interfering with the court’s special protection over its wards.” For present purposes I draw attention to these passages, starting with para 8-1:

“It is sometimes said … that it is a contempt to interfere with the welfare of a ward, but while this may be a convenient shorthand statement of the position, it is apt to be misleading. Though rooted in the need to protect the ward’s welfare, the essence of the contempt lies in interfering with the special protective jurisdiction which the court has over its wards. As Cross J said in Re B(JA) [1965] Ch 1112 at 1117:

“Any action which tends to hamper the court in carrying out its duty [to protects its wards] is an interference with the administration of justice and a criminal contempt.”

… Not all acts which may be harmful to a ward are necessarily contempts … Even acts which directly harm a ward do not automatically constitute a contempt. For example, assaulting a ward may no doubt be harmful to him, yet even if the offender knows that the child is a ward such an act will not, unless intended to influence court proceedings … normally constitute a contempt.”

In para 8-2 the authors say this:

“For the most part the contempt powers in this respect are best seen as another aspect of the automatic protection which arises by reason of the wardship.”

In para 8-11 they say:

“In principle it would seem that the contempt sanction is available wherever the automatic protection of a ward … is impaired provided, at any rate, that the offenders know that the child is a ward of court.”

What these passages, which I accept as an accurate statement of the law, bring out is that this species of contempt is the corollary of and defined by the ambit of what Lowe & White helpfully label the “automatic protection which arises by reason of the wardship,” what in Kelly I referred to as the “incidents” which attach to the status of wardship. The ambit of this branch of the law of contempt is delimited not by the “status” of being a ward but by the “incidents” of that status, as I have described them – the “important” or “major” step in the life of the ward of a kind that cannot lawfully be taken without the prior consent of the court.

Thus, in Kelly, 75, applying previous authorities such as In re X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47, In re F (A Minor) (Publication of Information) [1977] Fam 58 and In re R (Wardship: Restrictions on Publication) [1994] Fam 254, I held that it would not be a contempt for the BBC to broadcast an interview with the ward, even though it was aware that he was a ward:

“the media do not require the leave of the court either to interview a ward of court or to publish or broadcast such an interview. It makes no difference for this purpose that the child is known by those conducting, publishing or broadcasting the interview to be a ward of court.”

What emerges from this, and this degree of analysis suffices for present purposes, is that a criminal contempt is committed by someone who (a) without the consent of the court undertakes or facilitates some “important” or “major” step in the life of the ward of a kind that cannot lawfully be taken without the prior consent of the court and (b) knows that the child in question is a ward of court. Well-known applications of this principle, clearly established in the authorities, are that, even in the absence of any specific order in point, it is a criminal contempt to marry a ward or to remove a ward out of the jurisdiction.

It follows from this that, if the allegation is of this kind of contempt, it is a necessary ingredient of the offence, and thus in terms of pleading a necessary averment, that, at the material time, (a) the child was a ward of court and (b) the defendant knew that the child was a ward.

There is one final point to be noted. As Lowe & White explain, para 8-27:

“While contempts committed by interfering with the court’s duty to protect its wards are generally regarded as criminal … disobeying a court order is usually categorised as a civil contempt … The two types, however, overlap in the wardship context. For example, removing a ward from the jurisdiction amounts to a criminal contempt (see R v D [1984] AC 778 at p 791 per Watkins LJ – not commented upon in the House of Lords. See also Wellesley v Duke of Beaufort [(1831) 2 Russ &M 639, 39 ER 538]). If, however, the removal is contrary to a specific court order, it may also be regarded as a civil contempt.”

I shall return to this point below.

I turn to the wider category of contempts involving interference with the administration of justice. Authority does not need to be cited for the proposition that it is, in principle, a contempt of court to put pressure on a litigant to abandon the proceedings or to threaten a litigant or witness with retribution for giving evidence. But what is also clear is that such behaviour is not a contempt of court unless the perpetrator intends by his actions to interfere with or impede or prejudice the administration of justice: see, for example, Attorney-General v Times Newspapers Ltd [1992] 1 AC 191, 203 (Lord Brandon of Oakbrook), 218 (Lord Oliver of Aylmerton), and Attorney-General v Newspaper Publishing PLC [1997] 1 WLR 926, 936 (Lord Bingham of Cornhill CJ). I do not need for present purposes to explore any more precisely what intent needs to be proved. It suffices to appreciate that this species of contempt requires proof of what criminal jurisprudence would call a specific intent.

It follows from this that, if the allegation is of this kind of contempt, it is a necessary ingredient of the offence, and thus in terms of pleading a necessary averment, that, at the material time, the defendant had the relevant specific intent.

There is a related point which can best be made by reference to what Lord Atkinson said in the great case of Scott v Scott. One of the issues in that case was whether the alleged contempt, assuming it was contempt at all, was criminal or civil, for at that time section 47 of the Judicature Act 1873 provided that no appeal lay to the Court of Appeal in any “criminal cause or matter.” The Court of Appeal (Cozens-Hardy MR, Farwell, Buckley and Kennedy LJJ, Vaughan Williams and Fletcher Moulton LJJ dissenting) held the relevant contempt was criminal, so the appeal was incompetent: Scott (otherwise Morgan) v Scott [1912] P 241. The House of Lords held unanimously that it was civil, and therefore the appeal was competent: Scott (otherwise Morgan) v Scott [1913] AC 417.

Referring to section 47, Lord Atkinson said this, 464:

“If a certain act may be viewed in either of two aspects, the one criminal and the other simply tortious, it is, I think, essential, in order to bring a judgment or order dealing with it within this section, that it should clearly appear on the face of the judgment or order that the act is dealt with in its criminal, and not in its civil, aspect. Were it otherwise a judgment for damages in a case of wilful and deliberate assault could not be reviewed by a Court of Appeal since wilful assault is a crime. Now Lindley LJ, in O’Shea v. O’Shea and Parnell 15 PD 59, at p 64, is reported as having expressed himself thus: “There are obviously contempts and contempts; there is an ambiguity in the word; and an attachment may sometimes be regarded as a civil proceeding. For instance, where an order was made by the Court of Chancery in former days there was no mode of enforcing such an order but by attachment. We must not, therefore, be misled by the words ‘contempt’ and ‘attachment,’ but we must look at the substance of the thing. In the present case I have no doubt that the proceeding is a summary conviction for a criminal offence, and therefore no appeal lies.” To accuse one, therefore, of being guilty of a contempt of Court does not, I think, necessarily imply that he has committed a crime, nor is the criminality of the act necessarily implied by the added allegation that the contempt consisted in the violation of an order of Court.”

Against this general background I turn to consider how Mr Knowles and Mr Perkins put their case. It is put in two ways:

I start with the case based on wardship. Mr Knowles and Mr Perkins begin with various textbook statements of varying age, starting with Oswald’s Contempt of Court, ed 3, 1910, page 80, where it is said that it is contempt to “be guilty of misconduct towards, or in any way to interfere with, a ward of court.” They refer to some of the passages in Lowe & White, para 8.1, which I have already set out. They quote various passages from Arlidge, Eady & Smith on Contempt, ed 4, including paras 3-121–3-122:

“3-121 The question thus remains whether breach of an order relating to a ward, or made under the inherent jurisdiction of the court (even though not specifically under the wardship jurisdiction) is to be treated as criminal or civil. Anyone who acts inconsistently with such an order, knowing of its existence, is likely to be held to have had the requisite state of mind to justify a finding of criminal contempt [by] deliberately subverting the purpose of the court …

3-122 Moreover, it seems to have been a principle of long standing that any contempt in relation to a ward, whether there is a specific order in effect or not, is treated as a criminal contempt.”

They also quote para 11-338:

“It is long established that interference with the inherent parens patriae jurisdiction can amount to contempt. This will be classified as criminal contempt, even though in some cases consisting in disobedience to an order of the court.”

Turning to judicial statements of principle, they quote the passage from the judgment of Cross J in In re B(JA) (An Infant) [1965] Ch 1112, 1117, which I have already set out. They also refer to what Hayden J very recently said in In re M (Incapacitated Adult) (Best Interests Declaration: Potential Contempt) [2015] EWCOP 3, [2015] Fam 239, para 41(iii):

“Some case law also suggests that in the exercise of the parens patriae any action hampering the objectives of the court is an interference with the administration of justice and therefore a criminal contempt.”

Hayden J is explicit that the “case law” he had in mind was what Cross J had said in In re B(JA) (An Infant) [1965] Ch 1112, 1117.

For specific cases where these principles have actually been applied, they refer to two cases in particular which I need to consider in some detail: Wellesley v The Duke of Beaufort, Long Wellesley’s Case (1831) 2 Russ & M 639, (1831) 39 ER 538, and Re Crump [1963] Crim LR 666, 777, fuller report (1963) 107 SJ 682.

Long Wellesley was the father of a ward who, by order of the court, had been placed in the custody of third parties in Surrey; the order restrained Wellesley, although he was not a party to the suit, from removing her from their care or custody. Wellesley subsequently removed her from their house, took her to London and then arranged for her to be removed from the jurisdiction. Brought up before Lord Brougham LC, he professed not to know where she was and said that he would never bring her again within the jurisdiction of the court. He was committed to the Fleet for contempt, the order reciting that:

“His Lordship does declare the conduct of [Wellesley] in removing the said infant … and in concealing the present residence of the said infant to be a contempt of this Court; and his Lordship doth further declare the conduct of [Wellesley] in forcibly and without consent removing the infant ward of this Court, the king’s subject, beyond the realm, and his refusal now in person coram judice to inform the Lord Chancellor where the said infant is to be found, to be a gross and aggravated contempt of this Court.”

Wellesley sought his release, pleading privilege of Parliament as a Member of Parliament. Lord Brougham held, 665, that privilege protected against civil but not against criminal process. The question, therefore, was whether the contempt committed by Wellesley was criminal or merely civil. The Lord Chancellor held that the contempt was criminal, so Wellesley was returned to the Fleet.

In the course of his judgment, the Lord Chancellor, 669, posed a rhetorical question:

“Who are the persons most likely to be guilty of those very offences which this Court is most frequently called upon to visit with punishment in order to protect its wards? If other Courts have a certain proportion of their suitors in Parliament, this Court, from the importance of the matters brought before it, has a much larger proportion there; and if there be any cases in which members of Parliament – young commoners, and young lords – are more likely than others to become obnoxious to our jurisdiction, it is precisely in cases relating to the safety of heiresses and other wards.”

He then referred at length to Wilkinson v Boulton (1685) 1 Lev 162, a case where the Court of King’s Bench held that a peer could be committed for contempt of the Court of Aldermen in removing a ward of the Mayor and Aldermen of the City of London from the guardian appointed by them. He continued, 672:

“It is a case peculiarly in point with the present. The authority with which privilege of peerage was assumed by the demurrer to come in conflict was that of a city Court; the contempt for which it was alleged that privileged persons could not be arrested was taking away a ward of that Court. The Court of King’s Bench held that the peerage and its privileges afforded no protection in such a case; and to make the authority more applicable, the Court illustrated the decision by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved. Now Mr Long Wellesley has here taken away and detained the ward of this Court; he has eloigned that ward. Is it saying too much to add that a privilege which could not protect a peer in the time of Charles II against the authority of the Mayor’s Court, is still less capable in the present day of protecting a commoner against the authority of the Great Seal?”

He summarised the basis of his decision as follows, 673:

“the true grounds upon which to rest the case are these two: first, that privilege never extends to protect from punishment, though it may extend to protect from civil process; and next, that privilege never extends to protect from civil process where the object of the process is the delivery up of a person wrongfully detained by a party.”

The case is usually treated as authority for the proposition, as stated in the headnote to the report, that “The clandestine removal of a ward of Court from the custody of the person with whom such ward has been residing under the authority of the Court, is in its nature a criminal contempt.”

For present purposes the case can be treated as establishing two propositions. The first is that removing a ward of court from the custody of those to whom the court has entrusted the ward’s care, or removing a ward from the jurisdiction, if done without the prior consent of the court is a criminal contempt. The second is that the contempt does not lose its criminal character because it also involves breach of the court’s order.

In Re Crump an order had been made restraining a ward from marrying her cousin. Despite this, they married, having produced to the registrar what purported to be a form of consent by the ward’s parents but was in fact a forgery. The ward’s parents having declined to take any action in the face of this fait accompli, the Attorney-General moved for the committal of both the ward and her husband to prison “for intermarrying without obtaining the leave of the court.” Counsel for the Attorney-General submitted that “it was proper for the Attorney-General to intervene since the marriage was ipso facto a criminal contempt and so classified as an act calculated to prejudice the course of justice, and that if penal action were taken against the two persons, (Footnote: ²) there must be committal to prison for a fixed period.” Faulks J sentenced both the ward and her husband to 28 days’ imprisonment. (Footnote: ³)

For present purposes the case can be treated as establishing two propositions. The first is that marrying a ward of court if done without the prior consent of the court is a criminal contempt. The second is that the contempt does not lose its criminal character because it also involves breach of the court’s order.

In terms of principle, therefore, Long Wellesley’s Case and Re Crump are to the same effect. Something involving a ward of court which is a contempt of court even though there is no order of the court does not lose its criminal character because it also involves breach of the court’s order.

In Long Wellesley’s Case the child was removed at a time when she was a ward of court. In the present case, the removal was before the children were warded. So, whatever the subsequent course of the litigation, their removal to Nigeria was not a contempt of court: cf In re O (A Minor) (Wardship: Adopted Child) [1978] Fam 196, 209. Plainly, if, as in the present case, the children are subsequently warded and an order is made for their return, the breach of such an order will be a contempt of court: In re O (Infants) [1962] 1 WLR 724, 728, and In re O (A Minor) (Wardship: Adopted Child) [1978] Fam 196, 210. But will it be a criminal contempt? There is nothing in the authorities to suggest that it is, and principle demonstrates that it is not.

Each recognised example of this species of criminal contempt consists in the doing by the contemnor of some act, the doing of which is unlawful unless done with the prior consent of the wardship court: consider the list of such matters which I set out in Kelly in the passage quoted in paragraph 26 above. How could this extend to a complaint that the contemnor has omitted to do something? For where can an obligation to act originate except in some order of the court? The law imposes no duty on the world, or even on family members, to volunteer their assistance to the wardship court, and if it did, which, to repeat, it does not, the duty would be at most a duty of imperfect obligation. Suppose that the wardship judge makes a statement in open court, urbi et orbe, enlisting and entreating the assistance of the media and others in locating and procuring the return of a missing ward; and suppose that a family member, knowing perfectly well where the missing child is, does nothing. Is that a contempt? Plainly not, unless the court has embodied its wishes in an order which complies with the irreducible requirements of every mandatory injunction – that it is directed to an identified individual, or to a defined class of people of whom the relevant individual is a member, and that it specifies with proper particularity precisely what it is that the court requires to be done.

In short, the failure to do some positive act cannot in this context be a contempt absent an order of the court. And none of the many authorities relating to criminal contempt in the context of wardship begins to suggest that something which in a wardship case is a contempt only because it involves the breach of the court’s order is, or ever can be, merely because it is a wardship case, anything other than a civil contempt.

Drawing their submissions together, Mr Knowles and Mr Perkins make three points on the facts:

In support of this last point, Mr Knowles pointed to what is said in Arlidge, Eady & Smith, para 3-129:

“In appropriate circumstances, a party to civil litigation who manifest an intention to subvert the purposes of the court, over and above the mere fact of non-compliance with an order, could also be held (at least in theory) to be in criminal contempt.”

I turn to the second limb of the mother’s case.

The starting point of Mr Knowles and Mr Perkins is the submission that the only rational conclusion which can be reached from Newton J’s findings of fact and sentencing remarks is (a) that the father’s conduct seriously interfered with the administration of justice, so as to constitute the actus reus of criminal contempt, and (b) that his intention was to impede the administration of justice – the latter point being made good, they say, by the judge’s remarks in paragraph 9 of his sentencing judgment.

Understandably, Mr Knowles and Mr Perkins divide their more detailed submissions into two parts: the first, the contempts in relation to the orders set out in paragraphs 5(ii)-(iii) above, the second, the contempts in relation to the orders set out in paragraphs 5(i),(iv)-(vi).

Paragraphs 5(ii)-(iii): The submission is very simple. The facts alleged and found proved (see paragraphs 7, 9 above) demonstrate beyond argument, they say, that the father used threats and intimidation to try and persuade the mother to withdraw her proceedings in respect of the children. (Footnote: ⁴) There has never been any suggestion, they say, that the father’s purpose in threatening the mother was for any reason other than her desire to get her children back and her use of litigation against the father to do so. They submit that no other rational inference can be drawn from Newton J’s findings of fact but that there was a serious interference with the administration of justice and that it was the father’s intention so to interfere. They emphasise Newton J’s finding, in paragraph 9 of his sentencing judgment, that “He has deliberately subverted the court orders.”

They assert that the father’s conduct also amounted to the following criminal offences: an attempt to pervert the course of justice (see R v Kellett [1976] 1 QB 373, 388); harassment, contrary to section 2 of the Protection from Harassment Act 1997; and using threatening or abusive words likely to cause harassment, alarm or distress, contrary to section 5 of the Public Order Act 1986.

Paragraphs 5(i),(iv)-(vi): Mr Knowles and Mr Perkins submit that the contempts found proved against the father, separately and together, amounted to a serious interference with the administration of justice and that the inference can be drawn that it was the father’s intention so to interfere. Their primary focus is on the contempts in relation to the orders set out in paragraphs paragraphs 5(v)-(vi) above – the father’s failure to return the children from Nigeria. In support of this they submit in particular that:

As to the father’s contempts in relation to the orders set out in paragraphs 5(i),(iv) above – his flight abroad – Mr Knowles and Mr Perkins submit that they are to be viewed as part and parcel of the same course of conduct, “namely deliberately and intentionally removing [sic] the children from the UK permanently in defiance of court orders.” They say that by leaving the jurisdiction the father was attempting to put himself beyond the sanction of the court.

Mr Hames identifies a number of reasons why, as he would have it, I should refuse the mother the relief she seeks. The first relates to the nature and ambit of the committal proceedings before Newton J.

As Mr Hames points out, from first to last the committal proceedings before Newton J were based on, and based only on, allegations of breach of the various court orders. At no point was there any debate as to either the consequences of what the father had done or as to his intent. From first to last the only question was whether the orders had been breached. At no point was there any debate as to the nature of the various contempts, let alone any hint or suggestion that they were or might be criminal. The grounds relied on by the mother neither referred to the fact the children were wards of court nor alleged that anything the father had done had interfered with the administration of justice, let alone that this had been the father’s intention (see paragraph 8 above). In other words, the grounds omitted these two necessary averments (see paragraphs 32 and 35 above). As Mr Hames puts it, neither Newton J nor the parties considered that they were embarking upon proceedings for findings of criminal contempt.

More specifically, as Mr Hames points out, Newton J was not asked to, and did not, make any specific findings of intent in relation what the father had done, or not done. If intent is now to be relied on, it should have been made a specific issue at the hearing on 6 March 2015; it was not.

In sum, says Mr Hames, the father had no warning that any intent to interfere with or impede the administration of justice was an issue in the contempt proceedings or, indeed, that there was any question of criminal contempt. This, according to Mr Hames, has two consequences: first, that the hearing never generated the findings necessary for criminal contempt to be established; and, secondly, that if, in some way it did, it would be unfair to the father, both as a matter of due process and as a breach of his rights under Article 6, that the court should now retrospectively declare that the contempts were criminal.

I agree with Mr Hames, essentially for the reasons he gives. It is simply not open to the mother to seek now to make, retrospectively, a case of serious criminal misconduct that could and, if it is to be made, should have been made before Newton J on 6 March 2015.

I add, though it is not determinative of my decision, that this approach is, as it seems to me, entirely consistent both with what Lord Atkinson said in Scott v Scott (see paragraph 37 above) and with what Lord Toulson said in O’Brien, para 42, as to “the nature and purpose of the order” (see paragraph 24 above).

Accordingly, on this ground alone I would dismiss the mother’s application. However, the matter does not end there. I turn to consider the issues in relation to wardship.

I am unable to accept the mother’s case as I have summarised it in paragraphs 38 and 54 above. The law, in my judgment, is correctly set out in the passages in Lowe & White which I referred to in paragraph 28 above. The more expansive statements to be found in the passages in Oswald and in Arlidge, Eady & Smith relied upon by Mr Knowles and Mr Perkins (see paragraph 39 above) are not, in my judgment, and with all respect, accurate.

I am not aware of any authority for the proposition that interference with the inherent parens patriae jurisdiction can amount to this species of contempt in a case where the child is not a ward of court: the proposition is not, so far as I can see, supported by any of the authorities prayed in support; it is inconsistent with the true principles as I have explained them in paragraphs 29-32 above; and it is inconsistent with Hayden J’s reasoning and decision, with which I agree, in In re M (Incapacitated Adult) (Best Interests Declaration: Potential Contempt) [2015] EWCOP 3, [2015] Fam 239. The proposition that “any contempt in relation to a ward, whether there is a specific order in effect or not, is treated as a criminal contempt” is not warranted either by what Cross J said in in In re B(JA) (An Infant) [1965] Ch 1112 or by any other authority to which I have been referred or of which I am aware. As explained by Lowe & White, what Cross J was referring to was the principle that those contempts are criminal which, to use Lowe & White’s terminology, interfere with the “special protective jurisdiction” created by and reflecting the “automatic protection which arises by reason of the wardship.” As Mr Hames correctly put it, there is (and, I would add, never has been) any rule that all contempts in wardship are criminal.

In my judgment, the true principles in relationship to wardship and contempt are as I have set them out in paragraphs 29, 31 and 50 above:

It follows, in my judgment, that any assertion that the contempts found proved by Newton J are criminal because the children are wards of court is unsupported by authority and wrong both in principle and in law.

I add, lest it be thought I have overlooked the point, that I derive no assistance on this aspect of the case from either Re W (A Child: Committal) [2011] EWCA Civ 1196, [2012] 1 WLR 1036, or R v Kayani and others [2011] EWCA Crim 2871, [2012] 1 WLR 1927.

Accordingly, on this ground also I would dismiss the mother’s application. I turn to consider the issues in relation to interfering with the administration of justice.

The contempts in relation to the orders set out in paragraphs 5(ii)-(iii) above involve factual allegations – the father’s use of threats and intimidation to try and persuade the mother to withdraw her proceedings in respect of the children – which I readily accept engage that aspect of the law of criminal contempt which I referred to in paragraph 34 above. Mr Hames did not suggest the contrary. He proceeds on a narrower front. He makes three submissions:

I agree with Mr Hames. If the complaint had been free-standing, and not tied specifically to the father’s undertakings and, more importantly, if the complaint had been explicitly in terms of an intent to interfere with the administration of justice, if the judge’s findings had been expressly articulated as being on that footing, and if what Newton J subsequently said in paragraph 9 of his sentencing judgment had been incorporated as part of his findings on 6 March 2015, then the outcome would in all probability be very different. But that is not what happened. And it is, as I have already said, too late for the mother to attempt retrospectively to put forward a case different from the one which was articulated before Newton J.

Accordingly, on this ground also I would dismiss the mother’s application insofar as it is based on the contempts in relation to the orders set out in paragraphs 5(ii)-(iii) above. I turn finally to consider the issues in relation to interfering with the administration of justice based on the contempts in relation to the orders set out in paragraphs 5(i),(iv)-(vi) above.

Mr Hames makes a short and simple point. Many orders are breached in circumstances which frustrate the court’s process, sometimes intentionally. In many cases the disobedience is persistent, flagrant and has far-reaching consequences. But that does not mean that such contempts are necessarily criminal, even if the intention is to frustrate the court’s process. Realistically, Mr Hames does not seek to mitigate the seriousness of the father’s contempts. The father is, he concedes, “a bad civil contemnor”, but, he says, there is lacking in his conduct the extra element required by law to transform his civil into criminal contempts.

I can see the force of Mr Hames’ submissions, and agree that great caution is required before coming too readily to the conclusion that a wilful and flagrant breach of an order is a criminal contempt because its desired, intended and actual consequence is to frustrate the court’s process. But I prefer to decide the point on a narrower ground. If the judge, having been asked to address the point (and, of course, he was not, so he is not to be criticised), had clarified and elaborated his findings of fact and his analysis, it may be that he would have found, and been entitled to find, that these contempts were criminal. But he was not, and he did not. How, in these circumstances, can I make a finding, to the criminal standard of proof, that the father was guilty of a criminal contempt? In my judgment, I cannot.

Accordingly, on this ground also I would dismiss the mother’s application insofar as it is based on the contempts in relation to the orders set out in paragraphs 5(i),(iv)-(vi) above.

It follows that I must refuse the mother the declaratory relief she seeks.

In the course of his oral submissions, though not in his skeleton argument, Mr Knowles also sought to rely upon the decisions of the Supreme Court of Canada in Tony Poje and others v Attorney General for British Columbia [1953] 1 SCR 516 and United Nurses of Alberta v Alberta (Attorney General) [1982] 1 SCR 901. Both cases involved industrial action carried on in defiance of court orders. In each case the question was whether the contempts were criminal or merely civil. In each the contempts were held to be criminal.

In Tony Poje, Kellock J, explained why, 527:

“The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn … the character of the conduct involved a public injury amounting to criminal contempt.”

In United Nurses of Alberta, the majority (La Forest, Gonthier, McLachlin and Iacobucci JJ, Lamer CJ and Sopinka and Cory JJ dissenting) followed the reasoning in Tony Poje. Giving the judgment of the majority, McLachlin J said, 931, “The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt.” The dissenting reasons of Lamer CJ and Cory J were delivered by Cory J. In the course of his judgment, Cory J said, 913-914:

“My colleague McLachlin J concludes that in essence all that is necessary to transform a defiance of a court order into criminal contempt is that the conduct occur in public. With respect, I cannot agree. To accept such a standard would be to ignore the basis of the distinction between criminal and civil contempt. It would replace a functional distinction derived from the separate interests which the law of civil and criminal contempt are designed to protect with an arbitrary distinction based on the public profile of a dispute which has resulted in the breach of a court order.

… criminal contempt power should be used sparingly, with great restraint and only in those circumstances when it is required to protect the rule of law.

… If civil contempt is to be transformed into criminal contempt solely because it has occurred in a public forum, then it will have a very severe impact on all labour relations.”

In my judgment, none of this assists Mr Knowles. Although Kellock J’s judgment in Tony Poje is replete with reference to a large number of English authorities, it does not, in my judgment, represent the law of England. As the authors of Arlidge, Eady & Smith say, para 3-17:

“This is not an approach which has commended itself to English courts … Breaches of injunctions are always traditionally addressed as falling within the category of civil contempt, even though the conduct itself may assume a criminal character and, accordingly, the court’s consequential orders may be correspondingly punitive.”

They refer in this context to N v N (Contempt: Committal) [1992] 1 FLR 370, where a husband committed a breach of a non-molestation order by raping his wife. The court’s approach was explained by Russell LJ, 375, who, referring to the sentence imposed, said:

“… this was in no sense a punishment for the criminal offence of rape; it was a sentence imposed to mark the court’s appraisal of the aggravated circumstances in which the breach of the order was committed.”

Thus far I have not addressed the question whether a criminal contempt is, ipso facto, a criminal offence, for it will be recalled that the issue as formulated by Newton J’s order of 10 March 2016 is not whether these contempts constituted criminal contempts but whether they constituted criminal offences. Given my conclusions, this question does not in fact arise.

The arguments before me proceeded, largely tacitly, on the assumption that a criminal contempt is a criminal offence, whereas a civil contempt is not. That is consistent with the view expressed in Borrie & Lowe, The Law of Contempt, ed 4, para 6.74:

“criminal contempt is, for all its peculiarities, a crime, whereas a civil contempt despite its criminal characteristics is not.”

That the matter is not so clear cut is apparent, however, if one considers what is said in Arlidge, Eady & Smith, paras 3-67–3-68, 3-83–3-89.

The whole issue has been much bedevilled by the assertion, given traction in modern times by the dicta of Lawton LJ in Balogh v St Albans Crown Court [1975] QB 73, 91, and in Danchevsky v Danchevsky (No 2) (1977) 121 SJ 796, [1977] CAT 416A, though the proposition can be found as far back as In re Davies (1888) 21 QBD 236, that “contempt of court,” not differentiating for this purpose between criminal and civil contempt, “is a common law misdemeanour,” that even a civil contempt is a criminal offence: see the very detailed analysis of the case-law by Rimer J in Cobra Golf Inc and another v Rata and others [1998] Ch 109, 129-155.

The debate in relation to civil contempt has now been given its quietus by Lord Toulson’s unqualified statement in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23, [2014] AC 1246, para 38, that “contempt of that kind [scil, civil contempt] does not constitute a criminal offence.” However, it does not necessarily follow from this, either as a matter of logic or as a matter of law, that a criminal contempt does constitute a criminal offence.

I am inclined to think that a criminal contempt does constitute a criminal offence (see The King v Tibbits and Windust [1902] 1 KB 77, the last reported case of trial on indictment for contempt) notwithstanding the abolition in 1967 of the concept of misdemeanour and, more significant, the clear recognition in Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991, para 7, that, as Lord Judge CJ said:

“It should now be clearly understood that trials for contempt of court on indictment are obsolete, and of historical interest only. Neither the Attorney General, nor the alleged contemnor, has any right to seek trial by jury on indictment.”

However, as the point does not in fact arise for decision, I prefer not to express any concluded view.

Even if a criminal contempt is a criminal offence, there remains the question whether it constitutes an extradition offence for the purposes of the law of extradition. That is separate and distinct question which, as will be appreciated (see paragraphs 12-16 above), is not before me and on which, accordingly, I express no views at all.

For these reasons, although accepting that I have and should exercise the jurisdiction to determine the mother’s application, as re-formulated by Newton J’s order of 10 March 2016, I refuse to grant the mother the declaratory relief she seeks. Her application will, accordingly, be dismissed.